EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, December 2, 2012

Of Such A Character: Court Of Appeals Of The Armed Forces Implies Charged Conduct Can Be Used As Propensity Character Evidence Under Rule 413

Similar to its federal counterpart, Military Rule of Evidence 404(b) provides in relevant part that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.

That said, similar to its federal counterpartMilitary Rule of Evidence 413(a) provides that

In a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant.

So, does this mean that if a defense is charged with two offenses of sexual assault, evidence of one of the acts of sexual assault is admissible to prove his propensity to commit sexual assault and his likely conformity with that propensity at the time of the second sexual assault (and vice versa)? According to the opinion of the United States Court of Appeals for the Armed Forces in United States v. Burton, 67 M.J. 150 (U.S. Armed Forces 2009), the answer appears to be "yes."

In Burton,

A general court-martial composed of officer and enlisted members convicted Appellant, contrary to his pleas, of rape, sodomy, and indecent acts, in violation of Articles 120, 125, and 134, Uniform Code of Military Justice (UCMJ)....The sentence adjudged by the court-martial included a dishonorable discharge, confinement for eight years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. The convening authority disapproved the findings of guilt as to sodomy and indecent acts, approved the findings of guilt as to rape, and approved the sentence as adjudged with the exception of confinement in excess of seven years. The [United States Air Force Court of Criminal Appeals] affirmed....

Appellant's convictions arose from two distinct incidents, which were separated by several years. The Government charged Appellant with the forcible sodomy, indecent assault, and attempted rape of SS, a U.S. civilian he met while on leave in Venice, Italy, in 2000.FN4 In addition, the Government charged Appellant with the rape of Senior Airman DH, while both were stationed at Yokota Airbase, Japan, in 2004.

After the close of the evidence, the military judge instructed the panel that

An Accused may be convicted based only on evidence before the court. Each offense must stand on its own and you must keep the evidence of each offense separate. Stated differently, if you find or believe that the accused is guilty of one offense, you may not use that finding or belief as a basis for inferring, assuming, or proving that he committed any other offense. The burden is on the prosecution to prove each and every element of each offense beyond a reasonable doubt. Proof of one offense carries with it no inference that the accused is guilty of any other offense.


In the closing arguments that followed, the trial counsel noted the military judge's instruction that panel members could not use guilt of one offense as proof of guilt of another offense. However, trial counsel told the panel it could "take these things and compare them for [Appellant's] propensity to commit these types of offenses." He invited the panel to "take both of [the victims'] stories and lay them next to each other and compare them and see what this particular person's M.O. is." Further, trial counsel highlighted several similarities from the two incidents, including Appellant's particular actions and the victims' physical appearance and vulnerability. Defense counsel neither objected to trial counsel's statements nor requested further instructions from the military judge.

The Court of Criminal Appeals subsequently affirmed, finding "that trial counsel's argument was proper based on" Military Rule of Evidence 413(a). The Justice of the United States Court of Appeals for the Armed Forces thereafter split over what to do. All found that the statement made by trial counsel was improper because "[n]o evidence was introduced as propensity evidence pursuant to M.R.E. 413, and none of the procedural safeguards required as a predicate to such introduction were followed." The majority and concurrence, however, found that this impropriety was not plain error while that dissent determined that it was."

Going back to that first conclusion, though, doesn't it imply that the argument would have been proper if trial counsel had followed the procedural safeguards, meaning that charged conduct in a sexual assault case can be used ad propensity character evidence to prove other charged conduct? Indeed, consider the following statement by the dissent:

Had the trial counsel desired to make that argument, he should have followed the procedural steps of Military Rule of Evidence (M.R.E.) 413(b). Had those procedural steps been followed, the military judge would have made the necessary threshold findings under M.R.E. 413 and would have conducted an M.R.E. 403 balancing analysis.

This certainly seems to imply that Rule 413(a) can be used in this manner. And what this means is that is that Rule 413(a) is a rule that can be used to subvert the presumption of innocence. And that's why I believe that the Rule is ex post facto.

(Hat tip to Elena Roberts for the link)



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